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ELCAllowedELC Case (originally Machakos ELC No. 454 of 2012; suit property Makueni/Nguu Ranch/388)· [2022] KEELC 269 (KLR)

Patrick Nthiwa Kyalo v Mutua Katumo Nduuti [2022] KEELC 269 (KLR)

Environment and Land Court
20 April 2022
TMT. Murigi
2,139 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court set aside a land judgment entered without a hearing, restoring the landowner's right to defend his title in court.

What this practically means

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Executive summary

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The Defendant/Applicant, by Notice of Motion dated 18 November 2021 under Sections 1A, 1B and 3A of the Civil Procedure Act and Orders 9, 10 and 51 of the Civil Procedure Rules, sought setting aside of the ex parte judgment entered on 9 April 2018 and consequential orders so the suit could be heard on merit. The suit, filed on 7 December 2012 at the High Court in Machakos and later transferred to the ELC at Makueni, concerned Title Number Makueni/Nguu Ranch/388, in which the Plaintiff sought a permanent injunction, vacant possession and a declaration of bona fide ownership. The Applicant contended that his then advocates, Kasyoka & Co. Advocates, filed a defence which never appeared on the record, and that judgment in default proceeded without his knowledge; he learned of it only on 8 October 2021 when the Plaintiff attended the suit premises to erect beacons. The Respondent opposed, alleging inordinate delay and negligence by the Defendant's advocates. The court found no affidavit of service of mention or hearing notices after transfer to Makueni, found the defence on the record was not frivolous, and held that a counsel's mistake cannot be visited on a litigant. Relying on Article 50 of the Constitution, the audi alteram partem rule and Patel v EA Cargo Handling Services Ltd, the court allowed the application: the ex parte judgment and consequential orders were set aside, parties to comply with Order 11 within 21 days, the suit to be heard and concluded within three months, with each party bearing its own costs.

Key legal issues

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01

Whether the ex parte judgment and consequential orders should be set aside

Holding

The application was allowed; the ex parte judgment of 9 April 2018 and consequential orders were set aside so the suit could be heard on merit.

Reasoning

The court found the Defendant had filed a Statement of Defence that was not frivolous, that no affidavit of service of mention or hearing notices after transfer to ELC Makueni was on record, and that counsel's mistakes should not be visited on a litigant. Article 50 guarantees a fair hearing; no prejudice would befall the Plaintiff in a hearing on merit.

p. 3
02

Right to fair hearing under Article 50 and natural justice

Holding

Denying the Applicant a hearing would be a miscarriage of justice since Article 50 entitles every person to a fair hearing and no person may be condemned unheard.

Reasoning

The court invoked Article 50 of the Constitution and the audi alteram partem rule from Halsbury's Laws, holding that the right to fair hearing is a fundamental human right and that the Applicant, who expressed a desire to be heard, should not be denied the opportunity to defend his case.

p. 3

Legal principles established

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  • The discretion to set aside ex parte judgment is wide and should be exercised to avoid injustice, on such terms as may be just.
  • The mistake of counsel cannot be visited upon a litigant.
  • No person is to be condemned unheard; the audi alteram partem rule is a fundamental principle of justice.

Court orders

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  1. 1.The ex parte judgment entered on 9th of April 2018 and all the consequential orders be and is hereby set aside
  2. 2.The parties herein are directed to comply with Order 11 within the next 21 days from the date of this ruling
  3. 3.This suit shall be heard and concluded within the next three months from the date of this ruling
  4. 4.Each party to bear its own costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure Rules, 2010Order 9 Rules 9 and 10
  • Civil Procedure Rules, 2010Order 10 Rules 6, 9, 10 and 11
  • Civil Procedure Rules, 2010Order 51
  • Constitution of Kenya, 2010Article 50

Cases cited (2)

  • Patel Vs EA Cargo Handling Services Ltd
    (1974) EA 75
  • Halsbury's Laws of England, 5th Edition 2010 Vol 61 para 639
    null
Jurisdiction invoked
Sections 1A, 1B, 3A of the Civil Procedure Act and Orders 9, 10 and 51 of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Patrick Nthiwa Kyalo v Mutua Katumo Nduuti [2022] KEELC 269 (KLR)", Case Analysis (2022). ELC Case (originally Machakos ELC No. 454 of 2012; suit property Makueni/Nguu Ranch/388). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/269/eng@2022-04-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.